People v. Davis

592 N.E.2d 464, 228 Ill. App. 3d 123, 170 Ill. Dec. 28, 1992 Ill. App. LEXIS 478
Appellate Court of Illinois·Decided March 31, 1992·No. 1—87—2482, 1—89—1778 cons.·Published·Cited by 13 cases

Opinion

JUSTICE RIZZI

delivered the opinion of the court:

Defendant Steven Davis was found guilty of robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 1(a)) and burglary of an automobile (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(a)) in a bench trial and sentenced to three years’ probation. Defendant was charged along with codefendant Brian Coleman, who is not a party to this appeal. On appeal, defendant argues that (1) he was denied effective assistance of counsel; (2) he was denied a fair trial when he was not consulted about the nature and circumstances surrounding the substitution of defense counsel; and (3) he did not knowingly and understanding^ waive his right to a jury trial. We affirm.

At approximately 5:30 p.m. on November 24, 1986, Carmen DeVivies was driving northbound on Pulaski Road in Chicago, Illinois, when she stopped her automobile for a red light at the intersection of Pulaski and Madison streets. While stopped at the red light, the front passenger window of her automobile was shattered and simultaneously a man reached through the broken window and grabbed onto DeVivies’ purse. After a brief struggle, the offender succeeded in wrestling the purse from DeVivies and ran away from the scene of the crime. DeVivies immediately drove away and later called the police. DeVivies testified that she was unable to observe the face of the offender.

James Lemon, a member of two neighborhood crime-watch organizations, was patrolling the intersection of Pulaski and Madison streets along with three other individuals because of the recent increase in “smash and grab” incidents that had occurred at that intersection. From his observation point in the parking lot of a liquor store located 75 feet south of the intersection, Lemon observed defendant smash the front passenger window of DeVivies’ red Nissan Sentra and reach into the automobile while codefendant stood two to three feet away surveying the area. After defendant retrieved the purse, Lemon observed defendant and codefendant flee south on Pulaski Road and turn east on Monroe Street. Lemon and the three others chased after defendant and codefendant, but were unable to catch the offenders as they headed eastbound on Monroe Street. Moments later, an unmarked Chicago police vehicle which had been assigned to patrol Pulaski Road for “smash and grab” incidents was flagged down by Lemon. Lemon told the police officers what he and the others had observed and gave them a description of defendant and codefendant.

The police officers began to search for the individuals that Lemon described. When defendant and codefendant spotted the police, they started running northbound on Pulaski Road, but were immediately apprehended. The police officers returned defendant and codefendant to the scene of the crime, where Lemon identified them as the individuals whom he had observed smash the window of the red Nissan Sentra and steal the occupant’s purse. A search of defendant and co-defendant did not recover any of the stolen items.

The trial court appointed Public Defenders Steven Venit and Paula Lundberg to represent defendant and codefendant in this matter. When defendant requested a bench trial and codefendant requested a jury trial, separate representation of defendant and codefendant became necessary because of the potential for a conflict of interest involving their differing defenses. Following defendant’s jury waiver, Venit, who had been the lead attorney working up both defendant and codefendant’s cases, assumed sole representation of co-defendant, while Lundberg, Venit’s partner at the public defender’s office, assumed sole representation of defendant.

Following a bench trial, defendant was convicted of robbery and burglary of an automobile and sentenced to one year’s intensive probation followed by two additional years of felony probation. Defendant filed a petition for post-conviction relief, alleging that he was deprived of his right to effective assistance of counsel. Following a hearing, the trial court denied defendant’s post-conviction petition. This appeal followed.

Defendant first argues that he was denied his right to effective assistance of counsel as guaranteed by the sixth amendment to the United States Constitution. We disagree. Recently in People v. Eddmonds (1991), 143 Ill. 2d 501, 510-11, 578 N.E.2d 952, 956, our supreme court reaffirmed the application of the two-part test enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, for evaluating whether a defendant has received effective assistance of counsel. (See also People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Under the Strickland test, a defendant must prove in a post-conviction hearing that defense counsel’s errors were so objectively incompetent that counsel was not functioning as “counsel” as guaranteed by the sixth amendment. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Furthermore, if defense counsel’s incompetence is proven, a defendant must also demonstrate that counsel’s deficient performance substantially prejudiced his or her defense so that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) After reviewing the record of defense counsel’s representation of defendant in its totality, we hold that defendant failed to prove that defense counsel’s representation was incompetent.

Defendant argues that defense counsel committed various errors demonstrating the incompetency and ineffectiveness of counsel, including defense counsel’s failure to make an opening statement, her limited cross-examination of DeVivies, Lemon and Officer Zielinski, her failure to use any exhibits or photos at trial, her failure to visit the scene of the crime, her failure to meet with defendant or interview witnesses before trial, her failure to make an argument in support of her motion for a directed verdict, her failure to call defendant’s aunt to testify as an alibi witness and her failure to allow defendant to testify in his own behalf. We will address each of these contentions separately.

Defendant first contends that he received ineffective assistance of counsel because defense counsel failed to make an opening statement. This contention is without merit. There is a strong presumption that counsel has performed in a professionally competent manner, and a defense counsel’s decision to make or waive an opening statement on behalf of a defendant is a question of judgment in strategy or tactics that will not, in and of itself, demonstrate the ineffectiveness of counsel. (People v. Whittaker (1990), 199 Ill. App. 3d 621, 627-28, 557 N.E.2d 468, 472; People v. Georgev (1967), 38 Ill. 2d 165, 169, 230 N.E.2d 851, 854.) Only the most egregious of tactical or strategic blunders may provide a basis for a violation of a defendant’s right to effective assistance of counsel. People v. Kubik (1991), 214 Ill. App. 3d 649, 661, 573 N.E.2d 1337, 1345.

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People v. Davis, 592 N.E.2d 464, 228 Ill. App. 3d 123, 170 Ill. Dec. 28, 1992 Ill. App. LEXIS 478 (Ill. Ct. App. 1992).

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